07-0995 HB TURBO, L.P. v. TURBONETICS ENGINEERING & SERVICES, INC.; from Nueces County;
13th district (13-06-00083-CV, ___ SW3d ___, 06-07-07, pet. denied April 2008)
By two issues, HB contends the trial court erred in granting Turbonetics' no-evidence motion for
summary judgment because more than a scintilla of evidence exists as to its causes of action for trade
secret misappropriation and non-trade secret misappropriation (more appropriately referred to as
unfair competition). (1) By a third issue, HB contends the trial court erred in granting Turbonetics'
traditional motion for summary judgment because material fact questions exist as to its non-trade
secret misappropriation claim. We affirm.
The elements of unfair competition or common law misappropriation have been defined as (1) the
creation of plaintiff's product (i.e., the trade secret information) through extensive time, labor, skill, and
money; (2) the defendant's use of that product in competition with the plaintiff, thereby gaining a
special advantage in that competition (i.e., a "free ride") because defendant is burdened with little or
none of the expense incurred by the plaintiff; and (3) commercial damage to the plaintiff. United States
Sporting Prods., Inc. v. Johnny Stewart Game Calls, Inc., 865 S.W.2d 214, 218 (Tex. App.-Waco 1993,